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ARTICLE ID 139107

$________ GROSS - SETTLING OB/GYN ORDERS STANDARD ULTRA-SOUND INSTEAD OF TARGETED ULTRA-SOUND WHEN MOTHER BECOMES PREGNANT AT AGE 42 - NON-SETTLING RADIOLOGIST NEGLIGENTLY FAILS TO MEASURE A THICKENED NUCAL FOLD - PLAINTIFF PARENTS CONTEND APPROPRIATE TESTING WOULD HAVE LED TO AMNIOCENTESIS AND TERMINATION OF PREGNANCY - EMOTIONAL DISTRESS OF PARENTS.

Essex County

This medical malpractice/"wrongful birth" case involved the alleged negligent failure of the defendant ob/gyn to order a targeted ultrasound that would specifically looked for major anatomical markers of Down’s syndrome. The plaintiff maintained that the age of the 42-year-old mother dictated the taking of the targeted ultrasound. The co-defendant radiologist conducted a standard ultra-sound. The plaintiff contended that the non-settling radiologist failed to recognize or accurately measure the presence of a thickened nucal fold, which is suggestive of Down’s syndrome. The plaintiff asserted that if this test had been interpreted properly, it would have led to a targeted ultrasound that would have shown more specific markers for Down’s syndrome and an amniocentesis, which would have confirmed the syndrome. The plaintiff contended that upon such a diagnosis, the pregnancy would have been terminated. In this wrongful birth case, the plaintiffs made a claim for the extraordinary medical expenses and the emotional distress of the parents. Prior to trial, the plaintiff settled with the ob/gyn for an undisclosed sum. The ob/gyn’s carrier was MIIX, which had been in financial run off and on the brink of insolvency. If an insurance company in New Jersey becomes insolvent and is unable to pay its claims against it, the New Jersey Property-Liability Guaranty Association will become liable to pay claims. PLIGA, however, is statutorily obligated to pay no more than $________ per claim. The threat of insolvency was a large factor in plaintiff’s decision to settle pre-trial with the ob/gyn and coincidently, during the week of the verdict the threat of insolvency became a reality.

The plaintiff had contended, in the case against the ob/gyn, that because of her age, this defendant should have ordered a more detailed targeted ultrasound that would look for anatomical markers of Down’s syndrome, such as a shortening of the femur and abnormalities concerning the nasal bone, fingers and feet.

The plaintiff presented an expert in maternal fetal medicine who specialized in second trimester prenatal ultrasounds and had authored nearly ________ peer reviewed articles and text books on the subject. This expert testified that a thickened nucal fold was observable on the standard ultrasound performed and that the radiologist was negligent in failing to accurately measure it.

The defendant radiologist called two experts. The defendant’s expert radiologist, with a subspecialty in second trimester ultrasounds and the defendant radiologist’s expert ob/gyn, who is also board certified in genetics. Each denied that such a sign was evident on the test and contended that the radiologist properly interpreted the test he was asked to administer.

The defendant radiologist also maintained that even if the mother had been advised of the likelihood of Down’s syndrome, she would not have undergone an amniocentesis. The defendant radiologist contended that there were medical records which contained entries in which the mother’s feelings against having an amniocentesis were noted. The plaintiff questioned the accuracy and reliability of these records.

The plaintiff denied that the mother had expressed intent to decline amniocentesis if such a test was suggested. The plaintiff also argued that irrespective of this issue, the jury should consider that an individual’s general reluctance to undergo an invasive test would be very different from the decision that would be made after specific danger signs were seen on the ultrasound images. The evidence disclosed that the people with Down’s syndrome generally live into their 50s. The plaintiff’s life care planning expert discussed a life care plan and concluded that the extraordinary medical expenses that ranged for $________ to $________.

The jury found the settling ob/gyn 85% negligent, the non-settling radiologist 15% negligent and rendered gross awards of $________ for extraordinary costs until the child is 18, $________ for future extraordinary expenses after he is 18, $________ for emotional distress to the mother and $________ for emotional distress to the father.

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